FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22457/02
by Dragica BOŽIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 25 November 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 4 July 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Dragica Božić, is a Croatian national, who was born in 1943 and lives in Sisak, Croatia. She is represented before the Court by Mrs M. Savić, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 27 September 1991 the Croatian Pension Fund, Sisak Office (Republički fond mirovinskog i invalidskog osiguranja, Područna služba u Sisku) (the Sisak Office) issued a decision granting the applicant right to a family (widower's) pension (obiteljska mirovina) after her late husband as of 6 August 1991. However, no payments were made until 1 August 1997.
1.Administrative proceedings
On 18 September 1997 the applicant instituted administrative proceedings in order to recover the pension instalments due.
On 14 June 1999 the Sisak Office dismissed her request. It found that the payment of family pension was stopped between 6 August 1991 and 31 July 1997 since during that period the applicant had resided in the occupied areas of Croatia and her address had been unknown. The applicant appealed.
On 19 June 2000 the Croatian Pension Fund, Central Office (Hrvatski zavod za mirovinsko osiguranje, Središnja služba) (the Central Office) quashed the first-instance decision for factual shortcomings and remitted the case.
In the resumed proceedings, the Sisak Office dismissed the applicant's request on 9 October 2000. The applicant appealed.
On 9 April 2001 the Central Office again quashed the first-instance decision and remitted the case.
On 22 August 2001 the Sisak Office for the third time dismissed the applicant's request. The applicant appealed.
On 15 November 2001 the Central Office for the third time quashed the first-instance decision for factual shortcomings and remitted the case.
In the subsequent proceedings, the applicant filed an appeal for failure to respond (žalba zbog šutnje administracije) under the Administrative Procedure Act since the Sisak Office did not render a decision within the statutory time-limit of two months. Given that the Central Office also failed to decide on this appeal within the statutory time-limit of two months, on 17 December 2002 the applicant filed an action for failure to respond (tužba zbog šutnje administracije) with the Administrative Court (Upravni sud Republike Hrvatske) under the Administrative Disputes Act. The applicant subsequently withdrew this action since in January 2003 the first-instance decision had been rendered.
On 29 January 2003 the Sisak Office partly accepted the applicant's request. It awarded her the pension instalments as of 1 October 1994 and dismissed her request for the instalments due prior to that date. The applicant appealed.
On 20 May 2003 the Central Office dismissed the applicant's appeal.
On 1 July 2003 the applicant filed an administrative action with the Administrative Court challenging this decision. The case is currently pending before that court.
2. Civil proceedings
On 14 January 1998 the applicant filed a civil action with the Sisak Municipal Court (Općinski sud u Sisku) seeking recovery of the pension instalments due.
On 26 March 1999 the Sisak Municipal Court declined its jurisdiction in the matter and transferred the case to the Zagreb Municipal Court (Općinski sud u Zagrebu).
On 30 March 2001 the Zagreb Municipal Court issued a decision inviting the applicant to correct some particulars of her action.
On 23 October 2003 the Zagreb Municipal Court decided to stay the proceedings until the preliminary question of the applicant's entitlement to the pension and its amount would be finally decided in the proceedings under (1). The applicant appealed against that decision.
On 4 May 2004 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance decision to stay the proceedings, remitted the case and instructed the Zagreb Municipal Court to proceed with examining the merits of the case.
It appears that the proceedings are still pending before the first-instance court.
B. Relevant domestic law
The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Official Gazette no. 49/2002) (“the 2002 Constitutional Court Act”) – Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant's rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.”
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that the administrative proceedings have lasted an unreasonably long time.
2. She further complains, relying on Article 13 of the Convention, that she did not have an effective remedy at her disposal in respect of the length of the administrative proceedings.
3. The applicant also complains under Article 6 § 1 of the Convention about the length of the civil proceedings.
THE LAW
1. The applicant complains that the administrative proceedings have not been concluded within a “reasonable time” as required under Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant also complains that she had no effective remedy in respect of the length of the administrative proceedings. She relies on Article 13, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. The applicant further complains that the length of the civil proceedings have exceeded a reasonable time, contrary to Article 6 § 1 of the Convention.
The Court held, in its Slaviček and Nogolica decisions, that section 63 of the 2002 Constitutional Act on the Constitutional Court represented an effective domestic remedy in respect of the length of court proceedings which were still pending (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII).
The Court sees no reason to depart from its view expressed in the above decisions in respect of the civil proceedings complained of.
Since the applicant did not avail herself of that remedy, it follows that this part of the application is inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning the length of the administrative proceedings and existence of an effective remedy in this regard;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy